The release of information process can include requests that need to be handled with a different level of sensitivity, like subpoenas. A “subpoena duces tecum”, frequently just referred to as a subpoena, is a legal request to produce documents for a court case. These types of requests are more difficult to process because they require adhering to various laws that aren’t relevant in the context of a traditional authorization. It’s critical to have expertly trained staff to be compliant with state and federal law in responding to these requests.
Subpoena processing requires additional scrutiny
When a healthcare organization receives a subpoena to produce records, they must exercise additional caution in responding to the request. While a subpoena is not a court “order,” it is a request with teeth. The teeth: you may be legally obligated to comply with a subpoena by a certain date or potentially be drawn into the court case to answer as to why you did not respond.
If the subpoena is accompanied by a HIPAA-compliant authorization from the patient (or his/her personal representative) for the same records requested by the subpoena, the records may be produced. However, in most situations the subpoena lacks a signed authorization because the patient is not the party in the lawsuit seeking the records. Because the subpoena is a legal request to produce records, an authorization may not be required if the subpoena is compliant with applicable state or federal law. Each state has their own laws on how to respond to a subpoena, and some states have additional laws that provide exceptions or additional criteria when the subpoena seeks medical records. This is compounded by the fact that many subpoenas will cross state lines.
Quash or Objection Period
When a subpoena is issued, it likely contains a quash or objection period. This timeframe between the issue date of the subpoena and when the records are due to be produced allows the opposing counsel to object to the records being fulfilled. The quash period is state-dependent and is typically around 10-14 days. WARNING: Sometimes the subpoena will state a date that is shorter than the state’s quash period which may render the subpoena invalid.
If counsel files a motion to quash the subpoena to prevent the records from being produced, there are three basic results:
- a judge denies the request to quash the subpoena and the healthcare organization may release the records;
- a judge quashes (stops) the subpoena and the healthcare organization cannot release the records; or
- the attorneys reach an agreement about how the records may be produced and the healthcare organization may release the records. This option will typically result in a protective order being issued which places restrictions on how the records will be handled in the court case.
Release the Compliance Concern
Responding to subpoenas can be a time-consuming and sometimes complicated process and has the potential for compliance pitfalls. If your staff doesn’t frequently handle these requests, it can be difficult to stay abreast of the legal requirements surrounding subpoenas and may cause your practice to inadvertently negatively impact your patient’s legal case.
ScanSTAT utilizes a HIPAA-compliant virtual workspace where our team handles subpoenas along with all your other medical records requests. With this efficient remote system implemented, you get the benefit of ScanSTAT’s offsite expert personnel who are well-versed in responding to subpoenas so your staff can focus on other important initiatives. Find out how we can take the burden of fulfilling complicated medical records requests by requesting a demo today.
This FAQ is for informational purposes only and does not constitute legal advice. Seek your own legal counsel to ensure compliance with federal and state law.